Bass v. United States

• Citation: 379 F. Supp. 1208
• Decision Date: 06 August 1974
• Docket Number: Civ. A. No. C-5362.
• Parties: Harrolyn B. BASS, surviving wife of James Ernest Bass, Jr., Deceased, and James Carter Bass, Plaintiffs, v. UNITED STATES of America, Defendant and Third Party Plaintiff, v. George B. LINT, Third Party Defendant.
• Court: U.S. District Court — District of Colorado

379 F. Supp. 1208

Harrolyn B. BASS, surviving wife of James Ernest Bass, Jr., Deceased, and James Carter Bass, Plaintiffs, v. UNITED STATES of America, Defendant and Third Party Plaintiff, v. George B. LINT, Third Party Defendant.

Civ. A. No. C-5362.

United States District Court, D. Colorado.

August 6, 1974.

Richard D. Judd, Denver, Colo., for plaintiffs.

James L. Treece, U. S. Atty., Denver, Colo., and Mark A. Dombroff, Dept. of Justice, Washington, D. C., for defendant and third party plaintiff.

Paul D. Renner, Denver, Colo., for third party defendant.

OPINION AND ORDER

CHILSON, District Judge.

This action is one of a number of actions arising out of the crash of a light airplane near Stapleton International Airport, Denver, Colorado. In this action, Harrolyn Bass seeks to recover for wrongful death of her husband, James E. Bass, Jr., and James C. Bass seeks to recover for injuries to himself, both losses allegedly caused by the negligence of the United States and certain of its employees. The action is brought under the Federal Tort Claims Act, 28 U.S.C. § 2674, with jurisdiction based on 28 U.S.C. § 1346(b).

The defendant, United States, has impleaded the pilot of the aircraft on the theory that he must indemnify the United States for any liability found under the main complaint because, the government alleges, the crash was caused by the active and primary negligence of the pilot, George B. Lint.

The third party defendant, Lint, moves to dismiss the third party complaint on the grounds that the right to indemnity by a joint tortfeasor has been destroyed by the Colorado Comparative Negligence Statute which he contends now governs the liabilities of all parties involved in a tort claim. The third party defendant also moves to strike the prayer for attorneys' fees on the grounds that they are impertinent and immaterial to the issues in the third party complaint.

Both parties to the third party complaint agree by implication that Colorado law is applicable to this controversy.

Third party defendant argues that the Colorado Comparative Negligence Statute impliedly overrules the judicial doctrine of indemnity among joint tortfeasors. He asserts that since Colorado's statute was taken directly from the Wisconsin version, the legislature is presumed to have intended that the Wisconsin judicial construction of that statute be adopted by the courts of Colorado. See Hallett v. Alexander, 50 Colo. 37, 114 P. 490 (1911); Hoen v. District Court, 159 Colo. 451, 412 P.2d 428 (1966). Third party defendant argues that in Bielski v. Schulze, 16 Wis.2d 1, 114 N.W. 2d 105 (1962) the Wisconsin Supreme Court construed the comparative negligence statute to require that contribution of joint tortfeasors be fixed in proportion to the respective fault found by the jury.

The Colorado Supreme Court has not construed the Comparative Negligence Statute regarding this question. We are of the opinion that the Supreme Court of Colorado would follow the Wisconsin interpretation of their version of the comparative negligence statute. Hallett v Alexander, supra.

The third party defendant's position, although attractive at first glance, is not supported by a close reading of the Comparative Negligence Statute, the decision of the Wisconsin Supreme Court in Bielski, or the Colorado case law regarding contribution and indemnity of joint tortfeasors. Unlike Wisconsin, Colorado has no rule of law allowing contribution among joint tortfeasors. See Hamm v. Thompson, 143 Colo. 298, 353 P.2d 73 (1960). However, under Colorado law, a joint tortfeasor may be indemnified by the other tortfeasor who is the sole and primary cause of the loss to the injured party for all damages paid to that injured party. Colorado & S. Ry. Co. v. Western Light & Power Co., 73 Colo. 107, 214 P. 30 (1923); Parrish v. DeRemer, 117 Colo. 256, 187 P.2d 597 (1947); Atchison, Topeka & Santa Fe Ry. Co. v. Hadley Auto Transport, 192 F.Supp. 849 (D.Colo.1961).

The Colorado Comparative Negligence Statute does not deal with...